Thursday, December 14, 2006

The Lineup Motion

Flawed procedures beget flawed results. In many ways, this case can be summarized with those five words.

The latest bombshell defense motion demonstrates the point more clearly than any document thus far produced in the case.

Among the new material that the motion supplies:

DurhamAccessCenter

For the first time, we get a sense of what occurred at the DurhamAccessCenter, where the accuser arrived on 1.55am the night of the party. Once there, according to the motion, “she said her name was ‘honey’ and said that ‘she did not want to go to jail.’” The nurse described her as not “capable of maintaining her lucid thinking,” and therefore began “to zero in with questions.” (The nurse admitted that this approach was “unlike other interviews.” A confused allegation of rape appeared in response to this leading question—asked of a person who already had stated that “she did not want to go to jail.” The accuser was, however, consistent in one aspect of her tale: the second dancer had stolen her money.

DukeUniversityHospital

Kathleen Eckelt’s posts have made a convincing, inferential, case that the accuser was faking her pain. New material from the medical reports cited in the motion shows (yet again) the wisdom of Eckelt’s insights.

“The ESI Pain Documentation portion of the medical records indicates that she had no facial distress indicating pain, that she was not sweating (a common response to intense pain), that she did not change her body position in any way to indicate that she was uncomfortable, and that she had no changes in her vital signs (pulse, breathing, blood pressure) that would have corroborated her complaints of pain.Indeed, she was noted to be in ‘No Obvious Discomfort.’”

The Pre-Gottlieb Inquiry

It remains why, and how, Sgt. Mark Gottlieb, with his statistically significant disparity in arresting Duke students, assumed control of the investigation, late in the day March 15. But the motion sums up the state of the “inquiry” as of the time Gottlieb took charge:

Within the first 36 hours of the events in this case, the accuser denied being raped, claimed she was raped by 20 men, then 5 men, then 2 men and finally 3 men, claimed that she was carried against her will from a car by Nikki and “Brett,” claimed that she was dancing with three other women, multiple other women and then only one other woman, denied ever being struck with fists, claimed that Matt was getting married, told the forensic nurse that Matt raped her vaginally and orally, that Adam raped her anally, and did not mention Brett raping her, while telling other personnel that Brett raped her vaginally without mentioning either Matt or Adam.She is described as appearing intoxicated and as having a smell of alcohol on her breath; she told physicians that she was very drunk and was so drunk that she could not feel any pain on March 14 and did not realize that she had been hurt until she sobered up. At no time during this first 36 hours did the accuser ever describe the person(s) who she claimed raped her other than to say that he or they were “white.”

The Non-Suspects

In a stunning item, the motion reveals that on March 28, the police knew that at least two non-lacrosse players attended the party. Yet Mike Nifong, who by this point had assumed command of the investigation, explicitly ordered the police not to include photos of these two Duke students in the April 4 array. Why? Doing so would have required going back to court and getting a supplementary non-testimonial order for their photos and DNA—creating an image of an investigation in disarray just after the district attorney had launched his pre-primary publicity barrage assuring people that a rape had occurred and he was handling the inquiry in a competent fashion.

The Tangled Web

In attempting to prevent disclosure of what was said at his April 11 meeting with the accuser, Nifong claimed that she was“too traumatized” to speak of the events of March 13 and 14. To take Nifong at his word, the accuser must have been even more “traumatized” a week earlier, on April 4, when she made her choices through the procedurally flawed photo array.

Ignoring 4077

The lineup, as anyone who ahs followed Joseph Neff’s sterling reporting on the case already knows, was a procedural travesty. Confined to the suspects, overseen by the person co-running the inquiry, and with the accuser being informed that the lineup would include only people police believed attended the party, the array ignored all central elements of General Order 4077, which stated that “photographic arrays should adhere to the following set of guidelines”:

(a)“Use an independent administrator.It is preferable that the individual conducting the photographic array should be someone who does not know which member of the photographic array is the suspect.There should not be anyone present during the array procedure who knows the suspect’s identity.Only when resources make this practice prohibitive should an independent administrator not be utilized.”

(b)“Include a minimum of five fillers (non-suspects).”

(c)“If there is more than one suspect that fits the description of the perpetrator, there can be more than one suspect in the photographic array; however, the number of fillers should be increased to a minimum of five per suspect.”

As revealed in an earlier N&O inquiry, this flawed procedure produced badly flawed results—with the accuser describing herself as 100 percent certain she saw at least two players who weren’t even at the party, and misidentifying the player who made the broomstick comment, among other obvious errors.

The Number and Content of Statements

The motion reveals that the accuser gave approximately 16 versions of events at various points between March 14 and April 6 (including discussions with medical personnel). Inconsistencies resulted—over the length of the attack; whether the accuser was drunk; whether she was beaten; and whether Kim Roberts stole her money. Perhaps the greatest inconsistencies revolved around the question of “who did what”:

In her statement of March 14 to Officer GD Sutton, the accuser claimed that she had been in the bathroom with five men and that Brett had penetrated her vagina with his hands and penis; she would later add that she was penetrated by all five men. In the sexual exam assault report of March 14, the accuser said that Brett and Nikki carried her back into the house, where Adam closed the door and told her she could not leave.At that point Matt claimed that he was getting married but then raped her vaginally and then Adam sodomized her, later adding that Matt raped her orally as well. On March 16, the accuser told Inv. Himan that Adam came to the car and took her back into the house, that Brett first raped and sodomized her, followed by Matt, and that Adam forced her to have oral sex.She then said that Adam dragged her back to the car and wiped her off. In her handwritten statement of April 6, Dan and Adam came to the car to apologize and bring her back inside, Adam was the attacker who claimed he was getting married, Matt first raped and sodomized her, followed by Brett, Dan participated in beating her, and that Nikki and Adam took her back to the car.

The Mysteries of Adam

Even accepting everything the accuser said at face value, her story is fatally undermined by internal contradictions. Take the case of Adam—the person in the accuser’s narrative who she claimed forced her to perform oral sex. In the April 4 lineup, she assigned this role to Reade Seligmann.

Yet in the accuser’s April 6 statement and Inv. Himan’s notes, “Adam” also carried the accuser from the bathroom to the car when the rape was finished.Therefore, as the motion notes, the accuser’s statements claim that “‘Adam’ (ie, Reade Seligmann) stayed in the house for the entire attack and then carried or dragged the accuser to the car after the attack.”

This claim, however, cannot be true. The accuser was photographed on the back porch at 12.30am—several minutes after Reade Seligmann was photographed a mile away at an ATM machine. Seligmann, therefore, cannot be Adam. And if Seligmann cannot be Adam, then the accuser had to have lied in either her April 4 photo session or April 6 statement (or, of course, both).

The Mystery of the Mustache

The motion produces the photographs that Nifong refused to examine before indicting Dave Evans. In photos on March 11, two days before the party, and on March 14, one day after it, Evans had no mustache. Yet the accuser asserted that she was 90 percent certain that Evans attacked her—or a figure who looked like Evans, anyway, only with a mustache.

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This motion, in short, constitutes a devastating assault on Nifong’s case. It should serve not only to justify suppressing the lineup, but as a central exhibit in any ethics proceedings against Nifong conducted by the state bar.

I'm a lawyer but not in criminal law. I would say that if Nifong asks for more time to respond to the motions, the judge will give it to him. Also, the judge himself may not have had enough time to read and digest the motions. They are, after all, just one side's version of events. The state should have an opportunity to give its side. (Give them more rope to hang themselves.)

But I can't help but think that having all the defendants present means something. I've been reading the blogs all day and have not seen a NC lawyer comment on whether it is standard practice at the 3rd setting to have the defendants present. If it is considered a critical part of the proceedings, setting a trial date, they may have to be present for that.

Re Nifong's statement that CGM was too traumatized on 4/11 to discuss the case, may he meant to say HE was too traumatized because he learned the previous day in his conference with Meehan that she had been screwing 5 non-lacrosse guys, anally and vaginally, within a couple of days of the party.

I have a perverse sort of admiration for the mental gymnastics Nifong must have gone through with these lab results, trying to figure out how to minimize their impact long enough to survive the elections. I keep thinking he's a real malicious guy But of course, there is Hanlon's Razor which reads: Never attribute to malice that which can be adequately explained by stupidity.

KC,Welcome to NC. Duke is out for the semester, go to George's Garage Restaurant on 9th street, good fish. I posted this yesterday about the Bar going to act SOON. I saw my Bar Counselor friend again tonight. Nifungu will be summoned by the Bar to appear before a disciplinary hearing early next year. He is to show cause why his license should not be revoked or suspended for proctorial misconduct, to wit pretrial publicity. He may already have been served his summons, and keeping it to himself, or the Bar may be waiting for Friday's hearing to be over. It's coming, Book'em Dan O.

The Motion to Suppress is interesting for it chronological account of events and cast of characters. The entire chain of events to this date seems to have been set in motion with a Durham ACCESS registered nurse asking a suggestive question: "I simply asked if she had been raped" and "she nodded yes." (pg 4 item 4 Motion to Suppress)

DA Nifong is the only rapist in this whole affair. He has raped the supposed victim, the entire Durham community, and the judicial system. Oh what a tangled web ...

KC and Bill Anderson - you guys are the best. I am looking forward to meeting you at the book signing. Can not thank you enough for your work over this ordeal and bringing so many of us together. Very warm feeling. Obviously, I am feeling more encouraged and relieved over recent events. Never would I have thought the Lab would be involved in hiding evidence.

The fact that the false accuser just gave birth should mean nothing. If anything it strengthens the case for the defense of her being a prostitute. Is anyone surprised that a women who had unprotected sex with 5 different people in the days before the party is now pregnant?

I can see Nifong trying to justify the fact that he let things drag to "protect the false accuser while she is expecting."

Why was the false accuser popping flexeril and drinking heavily while pregnant? Why was the false accuser doctor shopping for pain killers? Why was the false accuser dancing at Platinum Club while pregnant? The plot does not thicken by this news, it simply shows her bankrupt character.

Cousin Jackie (the transsexual who looks like Hines Ward with a wig on) also broke the news to Greta. Greta said they already confirmed the child did not belong to any of the Duke 3 (obviously) and she also said the child did not belong to her boyfriend. So I ask? Who's your daddy? According to the DNA results it could very well be Meehan.

Where is Franz Kafka when you need him? It's all so horribly absurd. Its like the kind of nightmare one has when coming down with a fever.

The two motions together provide an absolute road map to aquittal. Finding the boys guilty beyond a reasonable doubt is a virtual impossibility. My only fear is that case is so incredibly bad, and the apparent prosecutorial misconduct so extreme, that Nifong can't drop it, which would be indirectly serve as admission of his misconduct.

This case is absolute role reversal. It is CSI being utilized to prove innocence instead of guilt. I'm sure the alleged victim and the prosecutors never imagined the amount of resources that would be brought to bear in order to expose this wasteful sham.

CGM and Nifong hopefully will be occupying the same cell in prison. They deserve each other. It would be interesting to know how many in the black community have known about the pregnancy and continued to uphold this little low life. If NC does not have a statute for punishing false accusers, the people of NC should not rest until the legislature passes one. This is the most outrageous and disgusting event in our state's history and to think that the administration of Duke University to whom I am paying $40,000 plus per year has stood by silent in this sham is all the more offensive. Now if I haven't been offended enough, as a taxpayer I have one more welfare baby to pay for. Am I angry? You damn right!

I would like the majority, ie white people, to assume the posture that the black community has assumed in this case. That is, if a white person claims that something happened, then it did. The evidence is not important.

This case has been important for unmasking the real agenda of the "civil rights" movement. The agenda is for minorities to subjugate white people to their power with the assistance of their vichey like nifong. Durham is a mere prototype for what we can expect when our society is fully diverse, multicultural and there is even power sharing.

So, whites need to seize the moment and understand that civil rights, is not any longer, if it ever was, about fairness and equality, but power. The power of one race to subjugate and abuse the other simply for being the wrong color. Well, now that we have the principle established, as the majority, whites should exercise it to their benefit.

Thank goodness this case has show us this prototype and the true agenda of the civil rights movement before it made any more progress.

Re possible libel cases against Duke profs-- In my view that is so unlikely to succeed as to not be worth the effort. It's been awhile since I've had a defamation case, but the statements of the profs, even Baker, were so diffuse (not a particular person) that it would be hard to say that any particular person's reputation was hurt by them. Of course, for about $50 you can sue anybody for anything.

KC may do an analysis of the possible targets for civil liability and would talk to experts in the field no doubt, and that would be better than my musings. Several posters have suggested suits against the university, but I don't see much potential there either. Even if you prove breach of a duty you would have to show that the actions of university employees caused damages. It would be speculative to say that anything the university did caused the wrongful prosecutions.

The best targets would be Nifong and Durham, it seems to me. Follow the model of the case now going on in NYC regarding the wrongful prosecution for rape there. Immunity would be an issue, but when he went so far beyond the rules of his position, immunity probably wouldn't apply. CGM would be a target, too, of course, but unless she swings a book deal there won't be any money there. The lab might be a target, too, but I expect Meehan will say (with some credibility) that the reporting shortcomings were requested by Nifong.

If the criminal case is dismissed short of trial, a civil suit against any of the actors could provide a way of demonstrating the players' innocence, if they think it still needs to be demonstrated. CGM, Kim, Gottlieb and Nifong could be forced to testify under oath about what they did

The alleged rape took place exactly 9 months ago (March 13) when the only DNA found in her was her boyfriends and yet...the baby is not her boyfriends nor any of the Duke Lacrosse players? Did she have a pimp? Maybe her pimp raped her when she came back with no money

3rd child CM loses custody of. Interesting to see what addictions the child will be tested for. Precious you could be looking at child abuse charges unless, of course, Nifong is the proud dad. Maybe, just maybe, the DNA expert is guilty. Thank God for the morning after pill. Hear they are working on an election-after pill.

Jackie seems to have the very same problem as the decond dancer. He/She could not keep eye contact. Just think about it- it was only Greta, the camera crew and Jackie in the room and he/she was looking all over the room. Then turned on the water works to add to the show.

I don't often comment here and I think the 3 guys are innocent, however:

Some of the posters in this thread are going over the top in comments about the AV. She's a sick girl. leave it at that. Vile comments don't help our 3 victims.

As for the actual content of the thread:

1. She was given a preg test and morning after pill at the hospital after the alleged attack, so the theory is she wasn't pregnant at the time or by either the BF or the 3 players.

2. we know she delivered 9 months later, but we don't know if she delivered early. when we get a weight on the kid, that will be a bit of a clue. (J/K maybe she delivered early for tax reasons)

3. the interesting fact from the defense case, is that it appears that immediately after this horrific attack, she was out screwing around enough to get pregnant in the next 2 weeks or so. So much for the Nifong trauma theory of not interviewing her.

My first post on this blog. I am a political liberal who, like most everyone else, was suckered in by the false and misleading actions of the prosecutor and media in this case. I am also a former Williams College student who wishes he (a) had taken a class with KC and (b) wishes his alma mater had found a way to retain him. Finally, I am a former assistant DA. Everything about the prosecution of this case is a complete and utter travesty -- and not just because these kids are not guilty. In a way, Nifong is lucky that they ARE innocent, because this case should be and will be dismissed due to the extraordinary prosecutorial misconduct, and his actions would have imperiled even a justifiable prosecution from succeeding.

The line-up is the greatest travesty of all. It's as if the Durham police and prosecutors took every lesson from Identification 101 (basic stuff I learned in my few weeks as a prosecutor) and did THE EXACT OPPOSITE. Including only suspects? Having someone involved in the investigation run the array? Worst of all, making it a multiple choice exam with no wrong answers, and telling the "victim" this?? To quote Rob Cordry, come ON! What a complete and utter joke of a prosecutor and of a case.

Again, I am not a conservative or culture warrior or anything like that, but what KC exposes at Duke, in the Durham media, and most of all, in Nifong's office, goes beyond all reason and is simply an unadulterated travesty of justice, morality and common sense. Keep up the good work on the blog.

I just watched the video of Cousin Jakki on Fox. She mentioned that the FA had been sequestered by the DA for the past 9 months. Is that true? I had assumed it was the NBPP or the family that kept her in hiding.

Also, agree that some of the musings with regard to the FA and the birth of the baby are way over the top. While the message is likely spot on, it is delivered without class by some. Hopefully the posters were full of the Christmas "Spirit" when posting and will come to regret their words today.

you cannot tell if you are pregnant on the day of the sex act! she gave birth 9 months to the day that the alleged crime happened so the players are not excluded so that is just wishful thinking. it takes about a week for the pregnancy test to be positive and that pill does not always work!

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I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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"From the Scottsboro Boys to Clarence Gideon, some of the most memorable legal narratives have been tales of the wrongly accused. Now “Until Proven Innocent,” a new book about the false allegations of rape against three Duke lacrosse players, can join these galvanizing cautionary tales . . , Taylor and Johnson have made a gripping contribution to the literature of the wrongly accused. They remind us of the importance of constitutional checks on prosecutorial abuse. And they emphasize the lesson that Duke callously advised its own students to ignore: if you’re unjustly suspected of any crime, immediately call the best lawyer you can afford."--Jeffrey Rosen, New York Times Book Review